Limited Discovery in Consular Processing Litigation: Muñoz v. U.S. Dept. of State

Merle Kahn writes:

"The District Court for the Central District of California granted a discovery request in a consular processing case.  [Muñoz v. U.S. Dept. of State]  Generally, when I think about consular processing, I just think about the Supreme Court’s decision in Kerry v. Din and think there is no hope and there is nothing that anyone can do.  But this case proves me wrong.

FACTS

Luis Ascencio is a native and citizen of El Salvador who came to the United States in March 2005.  In July 2010, he married Sandra Munoz, a native-born U.S. citizen.  Ms. Munoz filed an immigrant visa petition for her husband and in April 2015, Mr. Ascencio went to the U.S. Consulate in El Salvador with his approved immigrant visa petition.  Like many young men, Mr. Ascencio has several tattoos.  He was prepared for an interview at the Consulate.  He submitted evidence from Humberto Guizar, an attorney and a court-approved gang expert.  Mr. Guizar reviewed Mr. Ascencio’s tattoos and declared that Mr. Ascencio was not a gang member and had no tattoos that are representative of any known criminal gangs or any known criminal organizations either in El Salvador or in the United States. 

You would think that would be the end of the story.  But then, we would not have a story.  On December 28, 2015, the U.S. Consulate denied Mr. Ascencio’s visa application finding that he was inadmissible under INA § 212(a)(3)(ii) (any noncitizen who a consular officer knows or has reason to believe seeks to enter the United States to engage solely, principally, or incidentally in unlawful activity is inadmissible).  Ms. Munoz contacted Judy Chu, her Congressional representative, and Representative Chu sent a letter to DOS.  The consulate responded to her letter citing 212(a)(3)(A)(ii) but provided no specific facts for finding Mr. Ascencio inadmissible.  In April 2016, the consulate forwarded the case to the immigration visa unit for review.  The Immigration Visa Unit agreed with the consulate’s findings but did not give a reason why.  The Plaintiffs sued in District Court.  They raised six causes of action:

• The visa denial was not facially legitimate and bona fide;
• The visa denial violates the Equal Protection Clause of the Fifth Amendment;
• The visa denial violates the separation of powers clause;
• The visa denial was made in bad faith;
• The visa denial without judicial review violates the Administrative Procedures Act; and,
• Section 212(a)(3)(A)(ii) of the INA is unconstitutionally vague. 

The Plaintiffs sought an explanation for the denial of the visa application.

LEGAL ANALYSIS

The District Court noted that while the discretionary decisions of executive officials in immigration cases are subject to judicial review; that judicial review is narrow.  “[I]n the context of denying a visa application, a court must “limit[] its inquiry to the question whether the Government had provided a ‘facially legitimate and bona fide’ reason for its action.”  Kerry v. Din, 135 S. Ct. 2128, 2140 (2015) (Kennedy, J., concurring).  Din lays out a two-part test for determining whether the denial of a visa provides the “facially legitimate and bona fide” reason.  “First, the consular officer must deny the visa under a valid statute of inadmissibility. *.*.*.  Second, the consular officer must cite an admissibility statute that ‘specifies discrete factual predicates the consular officer must find to exist before denying a visa,” or there must be a fact in the record that ‘provides at least a facial connect to’ the statutory ground of inadmissibility.”  Munoz v. U.S. Department of State, No. CV-17-0037AS, slip op. at *3 (C. D. Cal. April 2, 2019). 

The District Court noted that the consular officer’s mere conclusion that Mr. Ascencio is a member of MS-13 is unsupported by any evidence or discrete fact in the record that provides at least a facial connection to the ground of inadmissibility.  The interview, criminal record review, and the tattoos are not enough.  “The term ‘reason to believe’ shall be considered to require a determination based on facts or circumstances which would lead a reasonable person to conclude that the applicant is ineligible to receive a visa as provided in the INA and as implemented by the regulations.  Munoz, slip op. at *4.  The reason to believe standard is more than just mere suspicion; it is a probability supported by the facts that the noncitizen is a member of an organized criminal entity.  Id.  And the gang expert’s sworn declaration disputed the Consular Officer’s conclusion. 

The District Court ordered that the Plaintiffs are entitled to limited discovery.  Plaintiffs may seek a deposition or a Rule 31 deposition by written questions of the consular officer who refused the visa petition.  The questions must regard the discrete facts in the record that provide a facial connect to Mr. Ascencio’s purported MS-13 affiliation and the consular officer’s consideration of the gang expert’s declaration.  It is really an amazing case.  And, it gives us a framework for challenging the consulates when they deny visa petitions.

Munoz v. U.S. Department of State, No. CV 17-0037 AS (April 2, 2019)."  [Hats off to Francisco Manuel Alejandro Delgado, Alan R Diamante and Monica Teresa Guizar!]